4.  The applicant submitted that he was born in 1986 and is currently living in Amsterdam.
5.  The applicant requested asylum in the Netherlands for the reasons set out below.
6.  He originally hailed from Mogadishu and belonged to the minority Ashraf population group. In 1991, due to the civil war, his family were forced to leave behind their belongings in Mogadishu and flee to the village of Tuulo Nuh, 25 km from Mogadishu, where they lived in primitive conditions.
7.  After their flight from Mogadishu, the family were robbed of their remaining possessions. Tuulo Nuh was controlled by the Abgal clan of the Hawiye clan-family. That clan's armed militia knew that the applicant and his family had no means of protection because they belonged to a minority, and for that reason the family were persecuted. Three other Ashraf families were living in Tuulo Nuh; they were treated in the same manner.
8.  Members of the militia would frequently come to the family home and threaten the applicant and his family. The first time this occurred was when the applicant was about seven years old: the militia threatened the applicant's father, saying that they would set the house on fire if he did not give them money. Whenever the applicant went out he would be harassed and beaten; sometimes when he went to fetch water, the bucket would be knocked over by members of the Abgal. The applicant's mother sold fruit and vegetables on the market. She was repeatedly robbed and ill-treated. Sometimes, when her daily takings had been stolen, the family had to go without food and drink.
9.  In 1995 the applicant's father was killed by members of the Abgal militia. One evening in December 1998, on one of the occasions when members of the militia came to the house, the family members were locked up and ill-treated – the applicant was hit with a belt and a rifle butt. His brother Ali had his arm broken. Then the militia members took the applicant's mother and sister as well as a female acquaintance outside with them. They left his mother, but took his sister and the acquaintance to a place outside the village where they raped them. They did not release them until the next morning.
10.  In May 2001 the applicant and one of his brothers were held by members of the militia, ill-treated and forced to unload a lorry from 10 a.m. until 5 p.m.
11.  In March/April 2002 the applicant's brother, who ran a small grocery shop, was shot and killed in his shop by Abgal militia members. The applicant heard the shots and when he went to look he saw the body of his brother lying on the floor while the militia members looted the shop. The militia knew his brother and saw him as easy prey because, being a member of a minority, he was unable to defend himself.
12.  About three months later, in June or July 2002, Abgal militia members came to the family home in a car, took the applicant's sister away, raped her and released her late the same night. Although the applicant was at home, he was powerless to intervene because he might have been killed in the process. It was not uncommon for militia members to rape girls. The majority of girls in the village belonged to the large clans and were therefore well protected. Of the families belonging to the Ashraf minority, the applicant's was the only one with a daughter, making her an easy target.
13.  The last time members of the militia came to the family home prior to the applicant's flight was in March 2003. Eight men came in a Jeep, carrying AK47 and M16 rifles. The applicant was at home with two younger brothers. He was threatened, beaten, punched and kicked. The militia searched the house looking for money. They left, saying that his mother should get money ready for them or the consequences would be dire.
14.  On several occasions the applicant's mother had requested the village wise men to ask the militia to stop persecuting the family, but to no avail.
15.  The family had been wanting to leave the country for a long time, but there was not enough money. Fleeing to another place in Somalia was not an option, as things might be even worse elsewhere. Finally, after lengthy negotiations conducted by the applicant's uncle with clan elders, his mother received compensation from the people who had moved into the family home in Mogadishu. This meant she had the financial means to pay for the applicant's escape to the Netherlands.
16.  The applicant's flight from Somalia was arranged by his mother and his uncle.
17.  On 1 May 2003 he went from Tuulo Nuh to Mogadishu, where he stayed in his uncle's house for one week while his uncle established contact with a “travel agent” calling himself Frank. The applicant handed over a number of passport pictures to Frank, which the latter used to obtain a Somali passport in the applicant's name. Frank then put the applicant up in a house in Mogadishu for a day. There the applicant met a boy by the name of Abdulkadir who was also about to flee the country. The next day, the applicant, Abdulkadir and Frank flew from Mogadishu to Nairobi (Kenya) in an aeroplane used to transport qat (a plant grown in Kenya, Ethiopia and Yemen; the chewing of its leaves and twigs is popular among Somalis). In Nairobi they took a taxi to a hotel. Frank did not allow the applicant to continue the journey using the Somali passport, which he took back from him. After staying in Nairobi for three days, the applicant, Frank and Abdulkadir flew to Istanbul and from there to Amsterdam. On this leg of the journey the applicant used a Kenyan passport in the name of one Mahat Ahmed Hassan, born in 1977, as well as an identity card in the same name. Frank would give these documents to the applicant when they had to pass through passport controls, but would then take them back again. On arrival at Amsterdam Schiphol Airport on 12 May 2003, Frank told the applicant and Abdulkadir to wait for him as he had to go somewhere in the airport. Whilst they were waiting they were approached by police, whereupon they said that they wished to request asylum.
18.  On his arrival, the applicant indicated that he wished to apply for asylum. He was refused entry into the Netherlands and deprived of his liberty. He was taken to the asylum application centre (aanmeldcentrum, “AC”) at Schiphol to lodge his request for asylum (verblijfsvergunning asiel voor bepaalde tijd) on 13 May 2003. A first interview with an official of the Immigration and Naturalisation Department (Immigratie- en Naturalisatiedienst) took place the same day in order to establish the applicant's identity, nationality and travel route. He stated, inter alia, that he thought he had been born in 1986 because he knew there was a three-year difference between himself and his brother.
19.  A number of further questions concerning the applicant's age were put to him on 14 May 2003. He said that as a result of an illness he had lost his hair, and this explained why he did not have much hair. He did not know his exact date of birth and estimated that he was 17 years of age. He consented to undergo an examination to determine his age.
20.  The same day a lawyer acting on behalf of the applicant submitted a small number of corrections to the record drawn up of the first interview. Referring to a report from the National Ombudsman, the lawyer also objected to the method used to determine the applicant's age. He further requested that the applicant be granted, ex officio, a residence permit for stateless persons who, through no fault of their own, are unable to leave the Netherlands (the so-called “no-fault residence permit” – “buiten-schuld vtv”).
21.  On 19 May 2003 the examination to determine the applicant's age was conducted. According to the results of the examination, the applicant was at least 20. On this basis the applicant's theoretical date of birth was given as 1 January 1983.
22.  On 28 May 2003 the applicant was interviewed about the reasons for his request for asylum. During the interview he stated, inter alia, that his mother had told him that he had been born on 23 February 1986 and that he had been five years old at the start of the war in Somalia. He did not agree with the attribution of a different date of birth, as he trusted his mother more than the doctor who had carried out the examination to determine his age.
23.  Meanwhile, on 15 May 2003, the Minister of Immigration and Integration (Minister voor Immigratie en Integratie – “the Minister”) had notified the Regional Court (arrondissementsrechtbank) of The Hague sitting in Haarlem of the measure imposed on the applicant depriving him of his liberty. According to section 94(1) of the Aliens Act 2000 (Vreemdelingenwet 2000), the applicant was deemed to have appealed against the measure by means of this notification. On 2 June 2003 the Regional Court rejected the appeal.
24.  On 3 June 2003 the applicant was given a copy of the statement of the Minister's intention to refuse him asylum (voornemen). On 20 June 2003 a lawyer acting on behalf of the applicant submitted written comments (zienswijze) on this intention.
25.  By a decision of 25 June 2003 the Minister refused the applicant's asylum request. The fact that the applicant had failed to submit documents establishing his identity, nationality and travel route was held to cast doubt on the sincerity of his account and detract from its credibility. This conclusion was not altered by the fact that it had subsequently been established that the applicant had flown to the Netherlands from Istanbul, since this information had come to light without any help from the applicant.
26.  The Minister further considered that the applicant had made unreliable statements as to his date of birth and his age. Although he had submitted that he was 17 years of age, an examination had shown that he was at least 20. This was also deemed seriously to affect the credibility of his account.
27.  The Minister found that, in any event, the reasons advanced by the applicant for his flight were insufficient to qualify him for refugee status. The situation in Somalia for asylum seekers, whether or not they belonged to the Ashraf population group, was not such that the mere fact of coming from that country was sufficient in order to be recognised as a refugee. The applicant's account contained insufficient indications that he had made himself known as an opponent of the (local) rulers. He had never been a member or sympathiser of a political party or movement, nor had he ever been arrested or detained.
28.  The applicant's claim that he had been harassed from when he was a child by members of the Abgal clan because he belonged to a minority in the area where he lived was also deemed insufficient to qualify him for refugee status. In this context the Minister held that the problems experienced by the applicant had not come about as the result of systematic, major acts of discrimination which rendered his life unbearable. Rather, these problems should be seen as a consequence of a generally unstable situation in which criminal gangs frequently, but arbitrarily, intimidated and threatened people.
29.  The applicant's claims that he had been held for one day in May 2001 and had been forced to perform hard labour, and that he had several times been threatened with death by members of the Abgal, were also deemed insufficient. The Minister considered that the applicant's situation could not have been desperate, given that he had stayed in the area where he was living despite having been the victim of extortion. This conclusion was not altered by the applicant's claim that he had wanted to leave sooner but had lacked the money.
30.  The Minister concluded that there had not appeared to be a real risk of the applicant's being subjected to treatment in breach of Article 3 of the Convention on his return to Somalia. Moreover, the applicant was not eligible for a residence permit under the policy of leniency towards asylum seekers who had undergone trauma (traumatabeleid), given that the alleged murder of his brother had occurred as far back as March/April 2002 and the alleged rape of his sister as far back as 1998 and June/July 2002.
31.  According to the Minister the return of the applicant to Somalia, given the general situation there, did not amount to an unduly harsh measure since, in order to avoid any future problems, he could settle in one of Somalia's relatively safe areas. The applicant had only heard, but had no proof, that he would experience the same problems there because he belonged to a minority. There was no reason to conclude that a general humanitarian emergency pertained in those areas. Whether or not the applicant had family or clan ties in the relatively safe areas, or whether or not he had ever been there before, was of no significance in this context.
32.  The Minister found that the applicant was not stateless since he held Somali nationality. Therefore, the applicant was not eligible for a “no-fault residence permit”. Finally, the Minister extended the measure depriving the applicant of his liberty.
33.  On 26 June 2003 the applicant appealed against the rejection of his request for asylum. He argued, inter alia, that a controversial method had been used to determine whether or not he was a minor, that the Minister had ignored the fact that his horrific experiences had their roots in a form of ethnic exclusion and exploitation and that no internal flight alternative existed within Somalia. The same day he also filed an objection (bezwaar) against the refusal to grant him a “no-fault residence permit” for stateless persons. The appeals against the deprivation of his liberty which he was deemed to have lodged by means of a ministerial notification were rejected by the Regional Court of The Hague sitting in Haarlem, by decisions of 2 June, 14 July, 25 August, 14 October and 1 December 2003 and 14 January 2004.
34.  On 15 August 2003 the Minister rejected the applicant's objection against the refusal to grant him a “no-fault residence permit” for stateless persons. She maintained that the applicant was not stateless; although there was no effective government in Somalia at the present time, the possibility existed that one would be established in the future. Moreover, the international community did not doubt the existence of the State of Somalia.
35.  Following a hearing on 16 September 2003 the Regional Court of The Hague sitting in Amsterdam dismissed the applicant's appeal against the rejection of his request for asylum on 7 November 2003. The Regional Court did not agree with the Minister that the applicant's account was rendered implausible as a result of the incorrect date of birth; according to the Regional Court, the applicant had merely stated what he had been told by his mother. However, for the remainder, the Regional Court considered that the Minister's view that the applicant's situation as he described it was insufficiently serious to qualify him for refugee status was well‑founded. The Regional Court agreed with the Minister that the problems experienced by the applicant had come about not so much as the consequence of a targeting of the applicant personally; rather, the events were to be seen as a result of the generally unstable (security) situation in Somalia, where intimidation and insults by criminal groups regularly and arbitrarily occurred. In this context the Regional Court attached relevance to the fact that the applicant could have removed himself from the situation pertaining in his immediate environment by moving to the “relatively safe areas” of Somalia, as appeared from, inter alia, the country reports (ambtsberichten) drawn up by the Minister of Foreign Affairs (see paragraph 47 below). In view of the foregoing, the Regional Court further held that the Minister had been correct in finding that the applicant had failed to substantiate his claim that he would run a real risk of being subjected to treatment in breach of Article 3 of the Convention if he were expelled to his country of origin. Finally, the Regional Court, referring to a judgment of the Administrative Jurisdiction Division of the Council of State (see paragraph 85 below), considered that the Minister could reasonably have taken the view that the applicant's return to Somalia did not constitute an exceptionally harsh measure in the context of the overall situation there, having regard to the fact that rejected asylum seekers belonging to minority groups could remove themselves from any problems they might experience by staying in the “relatively safe areas” of Somalia.
The applicant did not lodge a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) against the dismissal of his appeal, his lawyer advising him that, in view of that body's established case‑law concerning the availability of an alternative place of abode in Somalia, such further appeal would stand no chance of success.
36.  Having been informed that he was to be issued with a European Union (“EU”) travel document and deported to the “relatively safe areas” of Somalia, via Nairobi, on 16 January 2004, the applicant lodged an objection with the Minister on 8 January on the basis of section 72(3) of the Aliens Act 2000. He further requested the Regional Court of The Hague sitting in Amsterdam to issue a provisional measure to the effect that he would not be deported pending the appeal. The applicant argued that there were too many incongruities surrounding his deportation as planned: not only was the legal basis of the EU travel document unclear, it was also not known whether the authorities in Puntland and the Somali province of Mudug allowed persons travelling on such documents entry to their territory. In addition, the applicant, as a member of a minority unable to obtain protection from one of the ruling clans, would be forced to live in a camp for internally displaced persons (“IDPs”) in the “relatively safe areas”, where the conditions were so appalling that they had been described by the UN Independent Expert on the Situation of Human Rights in Somalia as a clear violation of human rights. This expert had also noted that the most pressing issue of concern in Puntland was discrimination against minorities who had no government or armed protection and were therefore vulnerable to sporadic rape and looting.
37.  The provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Amsterdam rejected the applicant's request for a provisional measure on 20 January 2004. The judge held that deportation with an EU travel document would be unlawful only if there were indications that entry to a territory would be denied to persons travelling with such a document. No such indications existed. Moreover, the airline company transporting rejected asylum seekers from Nairobi to Somalia had undertaken to return the persons concerned should they be denied entry to Somalia. The fact that an expulsion via Nairobi entailed a short stop at an airport in Mogadishu was insufficient to conclude that there would be a risk of treatment in breach of Article 3 of the Convention. Finally, the Regional Court considered that the recent tensions between Puntland and Somaliland did not render the expulsion unlawful, given that the applicant would be expelled to the province of Mudug.
38.  Meanwhile, on 15 January 2004, the applicant introduced the present application. He also requested the Court under Rule 39 of the Rules of Court to indicate to the Government not to expel him pending the proceedings before the Court. That same day, the President of the Chamber decided to indicate to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant. Thereupon, the Netherlands decided not to proceed with the applicant's expulsion. The applicant was also released.
39. On 27 February 2004 the Minister dismissed the applicant's objection against the decision to expel him. His appeal to the Regional Court of The Hague sitting in Amsterdam was declared inadmissible on 10 January 2005. The Regional Court held that the applicant no longer had an interest in a determination of the merits of his objection in view of the fact that its aim, a halt to the expulsion, had been achieved since, following the interim measure indicated by the European Court, it had been decided not to proceed with his expulsion. This decision was upheld by the Administrative Jurisdiction Division of the Council of State on 27 May 2005.
40.  On 7 July 2005 the Government informed the Court that the applicant was eligible for a residence permit on the basis of a temporary “policy of protection for certain categories” (categoriaal beschermingsbeleid, see paragraphs 42-43 and 87 below) adopted by the Minister on 24 June 2005 in respect of asylum seekers coming from certain parts of Somalia. Pursuant to this information, the applicant lodged a fresh application for asylum on 23 September 2005. The application was granted on 10 March 2006.